http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16  

PETITIONER: IBRAHIM AHMAD BATTI

       Vs.

RESPONDENT: STATE OF GUJARAT & OTHERS

DATE OF JUDGMENT13/10/1982

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. MISRA, R.B. (J)

CITATION:  1982 AIR 1500            1983 SCR  (1) 540  1982 SCC  (3) 440        1982 SCALE  (2)888  CITATOR INFO :  D          1986 SC 687  (67)  D          1986 SC2173  (20)  RF         1990 SC 607  (7,12)

ACT:      Constitution of  India, 1950, Article 22(5) and Section 3(3) of  the Conservation of Foreign Exchange and Prevention of Smuggling  Activities Act,  1947-Meaning and  import  of- Failure to  supply the  translations of  the documents  etc. relied on,  in the  language  known  to  the  detenu  and/or delayed-Supply without communication of the reasons recorded for  the   delay  would   be  a   clear  violation   of  the constitutional mandate of Article 22(5).

HEADNOTE:      On April 15, 1982, the Customs Officers raided bungalow No. 3,  Sweta Park Society, Bhuderpura, Ambawadi, Ahmedabad, allegedly belonging  to the  petitioner-detenu, but standing in the  name of  Rekhaben Champaklal  Seth  and  during  the search that  followed in  the presence of the petitioner and one Hasmukh  Prabhudas Sharma  contraband of  several  items were recovered  and seized  under the reasonable belief that they were  smuggled goods liable to be confiscated under the Customs Act, 1962. This seizure was followed by recording of confessional  statements  of  the  petitioner  and  his  co- conspirators. During  the follow  up  action  certain  other premises were searched and further contraband was seized. By an order  dated April  19, 1982,  issued  by  the  State  of Gujarat under  Section 3(1)  of COFEPOSA, the petitioner was detained  in  Ahmedabad  Central  Prison,  with  a  view  to preserving him from keeping and transporting smuggled goods. Grounds of  detention dated  April 23, 1982 alongwith copies of statements  and documents  relied upon  by the  detaining authority were  served on  the petitioner.  The petitioner’s representation to the Advisory Board was accepted, since the failure on the part of the detaining authority to supply the translations in  Urdu of  the grounds  and documents  relied upon, amounted  to a  clear violation  of the constitutional mandate of  Article 22(5)  vitiating the order of detention. Consequently, the  order of  detention was  revoked  by  the State under  section  8(f)  of  COFEPOSA  and  directed  his release forthwith,  unless he was required to be retained in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16  

custody under orders of any competent Court of Law. However, on the  same day  i.e.  on  1st  of  July  1982,  the  State Government passed  another order  of detention  against  the petitioner under  section 3(1) of the COFEPOSA and served it on him on 2nd of July 1982 whilst he was in judicial custody under Court’s Order in two cases, one under the Arms Act and another under  the Foreigner’s Act. This detention order was also passed  with a  view to  preventing him  from smuggling goods and  engaging himself  in transporting  smuggled goods and keeping  smuggled goods."  Grounds of  detention running into 32 typed pages in English together with copies 541 of all  the statements  and documents referred to and relied upon in  the grounds, in regional language, were served upon the petitioner  on 7th July, 1982. Urdu translations of only some of  these documents  were supplied on 15th of July 1982 without furnishing  the recorded  reasons for  the delay  in supplying  them.   The  petitioner’s   representations  made through his counsel on 5th August 1982, having been rejected on 13th  August, 1982  the petitioner  has filed  this  writ petition under  Article 32  of the  Constitution, contending that  non-supply   of  Urdu  translations  of  some  of  the statements  and  documents  relied  upon  by  the  detaining authority. In spite of the revocation of an earlier order on this ground,  and the  non-communication of  the reasons for the delayed  supply of  Urdu translations  in respect of the rest of the documents, have resulted in violation of Article 22(5) of  the Constitution  read with  section 3(3)  of  the COFEPOSA.      Allowing the Petition, the Court, ^      HELD: In  section 3(3)  of the COFEPOSA, the concept of "reasonable  time",  or  "the  shortest  possible  time"  or reasonably requisite time", predicated by the expression "as soon as may be" has been retained but it is only with a view to meet  the practical  exigencies of administrative affairs that the detaining authority is permitted to communicate the grounds of detention, not latter than 5 days ordinarily, and not  later   than  15   days,  if   there  are   exceptional circumstances and that too with a safeguard of reasons being recorded in  writing. In  other words, section 3(3) provides for the  outer limits  and the  grounds of  detention  must, therefore, be  furnished to  the detenu  ordinarily within 5 days  from   the  date   of  detention  but  in  exceptional circumstances and for reasons to be recorded in writing, the time may  stand extended but in any event it cannot be later than 15  days from  the date  of detention. Unless the first duty imposed  upon the  detaining  authority  under  Article 22(5) is discharged within the prescribed time, it would not be possible for the detenu to exercise his right of making a representation against  his detention-a  corresponding right arising  from   the  second   duty  cast  on  the  detaining authority,  namely,   to  afford  the  detenu  the  earliest opportunity  of   making  such  representation  against  his detention. [549 D-H, 550 A-B]      Abdul Jabbar  Butt v.  State of Jammu & Kashmir, [1957] S.C.R. 51; A.K. Ray’s case [1982] 1 S.C.C. 271, referred to.      2:1 The  principle  clearly  enunciated  in  Smt  Icchu Devi’s case  [1980] 4  S.C.C., 53  is  that  copies  of  all documents, statements  and materials  referred to  or relied upon in  the grounds of detention (meaning thereby which has influenced the  mind of  the detaining authority in arriving at its subjective satisfaction about the necessity to detain the detenu)  must be  communicated to  him within  the  time prescribed under  section 3(3)  of  the  COFEPOSA  and  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16  

without this  the right  to make  representation  cannot  be meaningfully exercised. [552 D-E]      2:2 From the decided cases, it would follow that if the grounds together  with copies  of all  documents, statements and other materials incorporated in the grounds by reference on which the detaining authority has relied are required 542 to be  communicated to the detenu under Art. 22(5) read with section 3(3)  of COFEPOSA  within the  prescribed time, the, not merely  the grounds  of detention but also the copies of all incorporated  documents, statements  and other materials must be supplied to the detenu in a script or language which he understands and failure to do so would amount to a breach of the  mandate contained in Article 22(5) read with section 3(3) of COFEPOSA. [553 C-D]      Lallubhai Jogibhai  Patel’s case  [1981] 2  S.C.R. 427, Harikisan’s case [1962] Supp. 2 S.C.R. 918, Hadibandhu Das’s case [1969]  1 S.C.R.  227, Smt.  Razia Umar  Bakshi’s  case [1980] Supp  SCC  195;  Kamala  Kanyalal  Khushalani’s  case [1981] 1 S.C.C. 748 and Sunil Dutt’s case A.I.R. 1982 SC 53, referred to.      2:3 Not merely the exceptional circumstances must exist justifying the  delay in communicating to the detenu all the materials relied  upon, but  these should be communicated to the  detenu   to   enable   him   to   make   an   effective representation. [554 G-H]      Bishwa Mohan Kumar Sinha v. State of Bihar & Ors I.L.R. (1974) 53  Pat. 884;  Bishawanath Prasad Keshari v. State of Bihar & Ors. I.L.R. (1975) 54 Pat. 72; approved.      3:1. Preventive  detention is  a  serious  invasion  of personal liberty  and the  normal methods  open to  a person charged with  commission of  any  offence  to  disprove  the charge or  to prove  his innocence  at  the  trial  are  not available  to   the  person   preventively   detained   and, therefore, in  preventive detention  jurisprudence  whatever little  safeguards   the  constitution  and  the  enactments authorising such  detention provide assume utmost importance and must  be strictly  adhered to and one of such safeguards is that  unless exceptional  circumstances really obtain the delay  in  supply  of  grounds  of  detention  as  also  the documents and  statements incorporated  therein by reference beyond the  normal period  of five days would be fatal. [556 D-F]      In all  the  facts  and  circumstances  no  exceptional circumstances obtained  in the case justifying the delay and as such  the same constitutes a breach of the constitutional as well  as legislative  mandate. (1) Upon revocation of the earlier detention  order on  1st of  July 1982, there was no urgency to issue the impugned order on the same day or serve it on  the detenu  on the following day since he was already in judicial  custody in  other two cases, one under the Arms Act and  the other  under the  Foreigners Act  and  no  bail having been  granted to  him,  there  was  no  fear  of  his absconding  from  Ahmedabad,  there  being  no  urgency  the detaining authority  could have  kept all the material ready in Urdu  and supplied  the same  to  him  immediately  after detaining him second time; (2) In the absence of information as to  the number  of Urdu translators put on the job except vaguely stating "handful translators were available" and the reasons for  not entrusting  to others  who do  not  observe Ramzan. it  is difficult to swallow the proposition that the State Government (with all its power and resources could not find requisite number of qualified persons to do that job so as to  make Urdu translations of the concerned documents and statements available  to the detenu within the normal period

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16  

of five days; and (iii) With the previous 543 detention order  having been  vitiated on  the very  ground, greater vigilance  and  expedition  was  expected  from  the detaining authority. [556 G-H, 557A-E]      3:2. It  is true  that neither  Article  22(5)  of  the Constitution nor  does the  COFEPOSA contain  any  provision which casts  a duty  upon the  detaining authority to inform the detenu  anything about the exceptional circumstances due to which  delay may  occur or about the fact whether reasons have been  recorded in  writing or  not for the delay. It is also true  that the  court will,  of  course,  go  into  and satisfy itself  about these  matters when  any issue in that behalf is raised before it. [557 H, 558 A]      3:3.  Under   the  scheme   of  COFEPOSA,  against  his detention the detenu has a right to make a representation to an authority  as well  as to  the Advisory  Board  and  such representation against his detention can be on merits of the grounds of  detention as also for the failure on the part of the detaining  authority to  observe strictly  the requisite safeguards and  on satisfying  the superior authority or the Advisory Board  on either  count he  is entitled to have his detention revoked  or quashed. In other words, the detenu is entitled to  satisfy either  the superior  authority or  the Advisory Board  that the  delay that  has  occurred  in  the supply of  requisite  material  to  him  was  not  justified because exceptional circumstances did not exist or those put forward were  unreal or  invalid. Obviously, the detenu will not be  in a  position to  do so  if the alleged exceptional circumstances are  not communicated  to him. Therefore, duty to inform  the detenu  about the  existence  of  exceptional circumstances and  what they  were for  delay  in  supplying grounds of  detention and/or  the documents  and  statements incorporated therein  arises by  necessary  implication  and flows from  the right  which is conferred upon the detenu to make representation  against  the  detention.  The  impugned failure in  this case  constitutes  another  breach  of  the safeguard contained  in Article  22(5) of  the  Constitution read  with   section  3(3)  of  COFEPOSA  and  vitiates  the continued detention of the petitioner. [558 B-G, 559 A-B]      (4) Non-supply of Urdu translation of the documents has clearly prejudiced  the petitioner  in the  exercise of  his right  to  make  an  effective  representation  against  his detention and hence the safeguard contained in Article 22(5) is clearly  violated. The petitioner is a Pakistani national and Urdu  seems  to  be  his  mother  tongue  and  a  little knowledge of  English figures, ability to read English words written in  capital letters  and a  smattering knowledge  of Hindi or  Gujarati would  not justify  the  denial  of  Urdu translation to  him of the material documents and statements referred to  as incriminating  documents in  the grounds and relied upon  by the  detaining authority  in arriving at its subjective satisfaction. [559 E-G, 560 E-D]

JUDGMENT:      ORIGINAL JURISDICTION : Writ Petition (CRL) No. 1077 of 1982.       (Under Article 32 of the Constitution of India)      Ram Jethmalanni,  P.H. Parekh,  Bhaskarbhai Mehta, C.A. Shah and J.M. Parekh for the petitioner. 544      D.V. Patel  and R.N.  Poddar, for the Respondent (State of Gujarat).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16  

    Ashwani  Kumar   and  Miss   A.  Subhashini   for   the Respondent-Union of India.      The Judgment of the Court was delivered by      TULZAPURKAR, J.  By this  petition Ibrahim Ahmad Batti, the detenu  herein, is  seeking to  challenge the  detention order dated  1st July,  1982 issued  by the respondent No. 1 (State of  Gujarat) under  s. 3  (1) of  the Conservation of Foreign Exchange  & Prevention  of Smuggling Activities Act, 1947 (for  short, ’the  COFEPOSA’) and praying for a writ of habeas corpus directing his release after quashing the same.      On  15th   April,  1982,  the  Custom  Officers  raided Bungalow No.  3, Sweta  Park Society,  Bhuderpura, Ambawadi, Ahmedabad,  allegedly   belonging  to   the  petitioner  but standing benami in the name of Rekhaben Champaklal Sheth and during the  search that  followed in  the  presence  of  the petitioner  and  one  Hasmukh  Prabhudas  Sharma  contraband comprising 700 pieces of gold with foreign markings weighing 7000 tolas,  radios, camera, Video cassette recorder, colour T.V. synthetic fabrics, crockery, etc. of considerable value and Indian  currency of  Rs. 72,766 were recovered; the said gold and  other articles  were seized  under the  reasonable belief  that   the  same   were  smuggled  goods  liable  to confiscation under  the Customs  Act, 1962. This seizure was followed by  recording of  confessional  statements  of  the petitioner and  his co-conspirators.  During the  follow  up action certain  other premises  were  searched  and  further contraband was  seized. By  an order  dated 19th April, 1982 issued by  the Respondent  No. 1  under  s.  3  (1)  of  the COFEPOSA, the  petitioner was  detained in Ahmedabad Central Prison with  a view  to  preventing  him  from  transporting smuggled  goods  and  keeping  smuggled  goods.  Grounds  of detention  dated   23rd  April,  1982  alongwith  copies  of statements  and  documents  relied  upon  by  the  detaining authority were served on the petitioner. The petitioner made a representation  against the said order of detention, which was considered by the Advisory Board, who opined thus:           "...although at  the date when the detention order      was passed  there was sufficient cause for reaching the      subjective 545      satisfaction that it was absolutely necessary to detain      the detenu  under s.  3 (1)  of the Act, the subsequent      failure on  the part  of  the  detaining  authority  to      supply the  translations in  Urdu of  the  ground,  and      documents relied  upon was  a clear  violation  of  the      constitutional mandate  of Art. 22 (5) so as to vitiate      the order  of detention  and hence,  in our view, there      exists no  sufficient cause for the continued detention      of said detenu."      Following the  above opinion of the Advisory Board, the respondent No.  1 by  its order  dated  1st  of  July,  1982 revoked the  detention of  the petitioner  under s. 8 (f) of the COFEPOSA  and directed  him to  be  released  forthwith, unless he  was required  to be retained in custody under the orders of  any competent  court of law. However, on the same day i. e. 1st of July, 1982, the respondent No. 1 issued the impugned order  of detention against the petitioner under s. 3 (1) of the COFEPOSA and served it on him on 2nd July, 1982 whilst he  was in judicial custody under Courts order in two cases, one  under the  Arms Act  and  the  other  under  the Foreigners Act  pending against  him and after taking him in custody again  under the  impugned  order  detained  him  in Ahmedabad Central  prison under the COFEPOSA. This detention was effected  "with a  view to preventing him from smuggling goods and  engaging himself  in transporting  smuggled goods

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16  

and keeping  smuggled goods."  Grounds of  detention running into 32  typed pages  in English  as well  as translated  in Urdu,  together  with  copies  of  all  the  statements  and documents, referred  to and  relied upon  in the grounds, in regional language  were served  upon the  petitioner on  7th July, 1982.  Urdu translations of the bulk of the statements and documents  referred to  and relied  upon in  the grounds were supplied  to the  petitioner on 15th July, 1982, though such  supply   did  not  include  translations  of  all  the statements  and  documents  relied  upon  by  the  detaining authority. The  petitioner’s representation made through his Advocate on  5th of August 1982 having been rejected on 13th of August, 1982, the petitioner has filed this writ petition under Art.  32 of the Constitution challenging his detention on several grounds.      Though counsel  for the  petitioner indicated  three or four grounds  on the  basis of which he desired to challenge the  impugned  order,  he  pressed  into  service  only  one pertaining to the breach of 546 the constitutional  safeguards contained  in  Art.  22  (5), which according to him, was sufficient to quash the impugned order. According  to counsel in the matter of supply of Urdu translations of  documents and  statements referred  to  and relied upon  in the  grounds by  the detaining authority for the  purpose   of  arriving   at  the  requisite  subjective satisfaction, the  detaining authority (respondent No. 1 has committed breach  of Art.  22 (5) read with section 3 (3) of the   COFEPOSA    resulting   in   non-observance   of   the constitutional  safeguards   conferred  on  the  detenu  and therefore, the impugned order was liable to be set aside. He pointed out that the grounds together with all the documents and statements  incorporated in the grounds by reference are required to be ’communicated’ to the detenu, that is to say, are required  to be  brought home  to him in the language he understands, ordinarily  within 5  days of his detention and only in  exceptional circumstances  and for  reasons  to  be recorded in  writing within  15 days  from the  date of  his detention under  s. 3  (3) of  the COFEPOSA, in other words, the delay  beyond 5  days is justifiable only in exceptional circumstances and for reasons to be recorded in writing, but in the  instant  case  Urdu  translations  of  the  bulk  of documents and  statements incorporated  in  the  ground  and relied upon  by the  detaining  authority  in  reaching  the requisite subjective  satisfaction were  not supplied to the detenu within  the normal  period of  5 days  but the supply thereof was  delayed upto  13 days  without any  exceptional circumstances obtaining  in the  case and  without recording any  reasons,   as  neither  the  existence  of  exceptional circumstances nor  the fact  whether the  reasons  had  been recorded in  writing was communicated to the detenu. Counsel urged that  the petitioner was deprived of an opportunity to make effective  representation to satisfy the Advisory Board that no  exceptional circumstances existed or that the delay in supply  of Urdu  translations that  were given to him was neither reasonable nor justified. Counsel further urged that the explanation trotted out now at the hearing, namely, that due to  Ramzan month  translators in Urdu were not available earlier is  no justification  whatever  for  the  delay  has occurred and  hence the  duty  to  communicate  the  grounds together with  documents and  statements in  support thereof within prescribed  time has been breached. In any case, Urdu translations of all the documents and statements referred to and relied  upon in  the grounds for reaching the subjective satisfaction have not been supplied to the petitioner at all

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16  

and quite  a few  of such  documents  and  statements,  Urdu translations whereof  have not  been supplied  at  all,  are rele- 547 vant and  material and  such as  have influenced the mind of the detaining authority in reaching its conclusion about the necessity to  detain the  petitioner. In  other words,  mere service of  the grounds  in Urdu  accompanied by  copies  of material documents  and  statements  in  English,  Hindi  or Gujarati on  the petitioner  on 7th  July is  no  sufficient compliance of  the duty  to communicate contemplated by Art. 22 (5)  according to  counsel and  he insisted  that only on 15th July,  1982 when  Urdu  translations  of  the  bulk  of documents and  statements were  served it could be said that the grounds  were communicated  to the detenu i. e. after 13 days of  his detention  without there  being any exceptional circumstances and  even on  that date  all Urdu translations were not furnished and this has happened notwithstanding the revocation of  the earlier  order precisely  for failure  to supply Urdu  translations. It  is in  this manner  that  the constitutional safeguards  conferred on the petitioner under Art. 22  (5) read  with s.  3 (3)  of the COFEPOSA have been denied to him and, therefore, the continued detention of the petitioner is illegal.      On the  other hand,  counsel for  the respondents  have contended that  no breach  of Art. 22 (5) read with s. 3 (3) of the  COFEPOSA has  been committed as alleged. Counsel for the respondents pointed out that after the earlier detention order was  revoked by the detaining authority under s. 8 (f) of the COFEPOSA, the petitioner was actually detained on 2nd July 1982  under the  impugned order  dt. Ist July, 1982 and within 5  days of  his  detention  the  grounds  in  English language as  well as  in Urdu  together with  copies of  all documents and statements referred to in the grounds in their regional language  were served on the petitioner and what is more  translations   of  the   bulk  of  the  documents  and statements so  referred in  the grounds were supplied to him on 15th  July, 1982  i. e.  within 13 days of his detention, and, according  to counsel, this delay in supply of the Urdu translations beyond  the normal  period of 5 days was due to exceptional circumstances  and reasons  therefor  have  been recorded in  writing as  stated by  Shri P.  M. Shah, Deputy Secretary of  the respondent No. 1 in his affidavit filed on 10th of  September,  1982.  Shri  Shah  has  stated  in  his affidavit that  "time was taken as large number of documents were to  be translated", while an office noting approved and signed by  the Home  Minister (copy  whereof was produced at the time  of hearing) indicates that on account of the month of Ramzan  handful Urdu translators were available to do the work 548 from 12 noon to 4.00 p. m. and, therefore, as a special case Urdu translations were decided to be furnished to the detenu within 15 days as prescribed by the COFEPOSA and accordingly Urdu translations  of bulk  of documents and statements were furnished within  13 days  of the detention. Counsel further contended that  neither Art.  22 (5)  nor s.  3 (3)  of  the COFEPOSA casts an obligation upon the detaining authority to inform   the   detenu   anything   about   the   exceptional circumstances due  to which  delay might  occur or about the fact whether  the reasons  have been  recorded in writing or not and  these are matters for the Court’s satisfaction when any issue  in that behalf is raised before it. As regard the non-supply of Urdu translations of some of the documents and statements referred  to in the grounds it was contended that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16  

most of  these documents  comprised statements  of  account, which were  in English  figures and  some of  them contained English words  in capital  letters, and  words in  Hindi and Gujarati and  the material  on record clearly shows that the petitioner knows  English figures, understands English words in capital  letters and  can  also  converse  in  Hindi  and Gujarati and  as such  no prejudice was caused to him in the matter of  making representation  against his  detention. In these circumstances,  counsel for  the respondents contended that the  impugned order  could not be quashed on the ground suggested by the petitioner.      Since breach  of constitutional safeguards contained in Art. 22(5)  and s.  3(3) of  the COFEPOSA  has been the main ground for  attacking the  continued detention of the detenu as illegal,  it will  be  desirable  to  consider  the  true meaning and  import of  these two  provisions. Art. 22(5) of the Constitution runs thus :           "When any  person is  detained in  pursuance of an      order made  under  any  law  providing  for  preventive      detention, the  authority making  the order  shall,  as      soon as  may be, communicate to such person the grounds      on which  the order  has been made and shall afford him      the earliest  opportunity of  making  a  representation      against the order." Section 3(3) of the COFEPOSA provides as under :           "For the  purposes of clause (5) of Art. 22 of the      Constitution, the communication to a person detained in      pursuance of  a detention order of the grounds on which      the order has been made shall be made as soon as may be      after the detention, but ordinarily not later than five      days, and in 549      exceptional  circumstances   and  for   reasons  to  be      recorded in  writing, not later than fifteen days, from      the date of detention." The real  import of  cl. (5)  of Art.  22 including the true meaning of  the expression  "as soon  as may  be"  occurring therein was  explained by  this Court in Abdul Jabar Butt v. State of Jammu & Kashmir(1) After noting that s. 8(1) of the Jammu &  Kashmir Preventive  Detention Act was nothing but a reproduction in  substance of  the provisions  of cl. (5) of Art. 22 of the Constitution, this Court pointed out that the said provision  imposes upon  the  detaining  authority  two duties, namely,  (i) the duty of communicating to the detenu the grounds  on which  the order  has been made and (ii) the duty of  affording him  the earliest opportunity of making a representation against  the detention  order  and  that  the first duty  is to  be performed "as soon as may be", meaning thereby "within  a reasonable  time with an understanding to do it within the shortest possible time" the Court, however, pointed out that what could be regarded as ’reasonable time’ or the  ’shortest possible time’ would depend upon the facts and circumstances  of the  case in which the question arises for decision,  but the time predicated by the expression ’as soon as  may be,  was what  was ’reasonably  convenient’  or ’reasonably requisite’.  In s.  3(3)  of  the  COFEPOSA  the concept of "reasonable time" or the "shortest possible time" or "reasonably  requisite time" predicated by the expression "as soon  as may  be" has  been retained but as explained in A.K. Roy’s(2)  case it  is only  with a  view  to  meet  the practical exigencies  of  administrative  affairs  that  the detaining authority  is permitted to communicate the grounds of detention  not later than 5 days ordinarily and not later than 15 days if there are exceptional circumstances and that too with  a safeguard  of reasons being recorded in writing.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16  

In other words s. 3(3) provides for the outer limits and the grounds of  detention must,  therefore, be  furnished to the detenu ordinarily  within 5  days from the date of detention but in  exceptional circumstances  and  for  reasons  to  be recorded in  writing the time for furnishing the grounds may stand extended  but in  any event it cannot be later than 15 days from  the date  of detention.  It is  also  clear  that unless the  first duty  imposed upon the detaining authority under Art. 22(5) is discharged within the 550 prescribed time  it would  not be possible for the detenu to exercise his  right of  making a  representation against his detention-a corresponding right arising from the second duty cast on  the detaining  authority,  namely,  to  afford  the detenu   the    earliest   opportunity    of   making   such representation against his detention.      In Khudi Ram’s(1) case this Court has explained what is meant by "grounds on which the order is made" in the context of the  aforesaid duties  cast upon  the detaining authority and the  corresponding rights  accruing to  the detenu under Art. 22(5).  The Court  has ruled  that in  that context the expression ’grounds’  does not  merely  mean  a  recital  or reproduction of a ground of satisfaction of the authority in the language  of s. 3 nor is its connotation restricted to a bare statement  of conclusion of fact but "nothing less than all the  basic facts  and  materials  which  influenced  the detaining authority in making the order of detention must be communicated  to   the  detenu"   and  ’that  is  the  plain requirement of  the first  safeguard in  Art. 22(5)". Again, what  would  be  comprised  in  "all  the  basic  facts  and materials" has  been elaborated  by this Court in Smt. Icchu Devi’s (2)  case where  this Court  has taken  the view that documents, statements  and other  materials referred  to  or relied upon  in the  grounds of  detention by  the detaining authority in  arriving at  its subjective  satisfaction  get incorporated and  become part of the grounds of detention by reference and  the right of the detenu to be supplied copies of such  documents, statements  and  other  materials  flows directly as  a necessary  corollary from the right conferred on the  detenu to  be afforded  the earliest  opportunity of making  a  representation  against  the  detention,  because unless the  former right  is available  the latter cannot be meaningfully exercised and in that behalf the court has gone on to  observe that  "on a proper construction of cl. (5) of Article 22  read with  section 3,  sub-section  (3)  of  the COFEPOSA Act,  it is  necessary for the valid continuance of detention that,  subject to clause (6) of Article 22, copies of the documents, statements and other materials relied upon in the  grounds of  detention should  be  furnished  to  the detenu alongwith  the grounds  of detention  or in any event not later  than five  days and  in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from  the date  of detention.  If this  requirement  of clause (5)  of Article  22 read  with section 3, sub-section (3) is not 551 satisfied the continued detention of detenu would be illegal and void."  It may  be stated that in Shalini Soni’s(1) case this Court  has taken  the view that Smt.. Icchu Devi’s case (supra) is a further development and elaboration of what was said earlier  in Khudi  Ram’s case  (supra)  and  the  Court confirmed the  position that the grounds communicated to the detenu  must  reveal  the  whole  of  the  factual  material considered by  the detaining  authority and  not merely  the inferences of  facts arrived  at by  the detaining authority

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16  

and that  copies of  documents to which reference is made in the ’grounds’  must be  supplied to  the detenu as a part of the ’grounds’.      Counsel for the respondents, however, referred to three decisions of  this Court, namely, Ramchandra Kamat’s(2)case, Hansmukh’s case  (3) and  Smt.. Ummu Saleema’s (4) case, but in our  view, none  of  these  decisions  detracts  from  or affects the  validity of the principle clearly enunciated in Smt. Icchu  Devi’s case  (supra) and  confirmed  in  Shalini Soni’s  case  (supra).  In  the  first  case  the  detaining authority had  raised a contention that it was not incumbent upon it to supply copies of all the documents relied upon in the grounds  of detention  alongwith the grounds within five days of  the detention because the grounds were sufficiently detailed so as to enable the petitioner to make an effective representation against  the detention  and it  was  in  that context that this Court made observations to the effect that "it may  not be  necessary for  the detaining  authority  to supply copies  of all  the  documents  relied  upon  in  the grounds of  detention at  the  time  when  the  grounds  are furnished to  the detenu but once the detenu states that for effective representation it is necessary that he should have copies of statements and document referred to in the grounds of detention  it is  the duty  of the detaining authority to furnish  them  with  reasonable  expedition;  the  detaining authority cannot  decline  to  furnish  the  copies  of  the documents on  the ground  that the grounds were sufficiently detailed to  enable the  petitioner  to  make  an  effective representation." In  fact, the  real point  decided was that once  a  demand  was  made  by  the  detenu  for  copies  of statements and  documents relied  upon  in  the  grounds  of detention  for   making  an   effective  representation  the detaining authority was bound to supply 552 the same  with reasonable  expedition and could not deny the same  on   the  ground  that  sufficient  details  had  been furnished  in   the  grounds   of  detention.   The  earlier observation cannot  be regarded  as a  ratio of the case. In the second case this Court made a distinction between ’basic facts’ and  ’subsidiary facts’  or ’further  particulars  of basic facts’  and held  that a little delay in supplying the latter category  of facts was not fatal to the detention. In the third  case all that this Court decided was that failure to supply  the documents and materials casually or passingly referred to  in the  course of  narration of  facts  in  the grounds of  detention and  which are  not relied upon by the detaining authority  in making the detention order would not render the  detention illegal.  Nobody  has  suggested  that documents and materials to which casual or passing reference is made  in the  grounds and  which have  not influenced the mind of  the detaining  authority in  making  the  order  of detention  should  also  be  supplied  to  the  detenu.  The principle clearly  enunciated  in  Smt.  Icchu  Devi’s  case (supra) is  that copies  of all  documents,  statements  and materials referred  to or  relied upon  in  the  grounds  of detention (meaning thereby which have influenced the mind of the  detaining  authority  in  arriving  at  its  subjective satisfaction about  the necessity to detain the detenu) must be communicated  to the  detenu within  the time  prescribed under s.  3(3) of  the COFEPOSA  and that  without this  the right  to   make  representation   cannot  be   meaningfully exercised.      Apropos  the   true  connotation   of  the   expression ’communicate’ the latest decision of this Court in Lallubhai Jogibhai Patel’s  (1) case  is significant. In that case the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16  

detenu did  not know  English while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining  authority stated  that the  Police  Inspector while serving  the grounds  of detention fully explained the grounds in  Gujarati to  the detenu  but the Court held that that was  not a  sufficient compliance  with the  mandate of Art. 22(5),  which requires  that the  grounds of  detention must be  communicated to  the detenu.  The  Court  observed: "Communicate" is  a strong  word which means that sufficient knowledge of  the basic  facts  constituting  the  ’grounds’ should be  imparted effectively  and fully  to the detenu in writing in  a  language  which  he  understands.  The  whole purpose of  communicating the  ’grounds’ to the detenu is to enable him to 553 make a  purposeful  and  effective  representation.  If  the ’grounds’ are  only verbally  explained to  the  detenu  and nothing in  writing is left with him, in a language which he understands, then  that  purpose  is  not  served,  and  the constitutional mandate  in  Art.  22(5)  is  infringed."  In taking this  view the  Court relied  upon its  three earlier decisions, namely,  Harikishan’s (1)  case, Hadibandhu Das’s (2)  case  and  Smt.  Raziya  Umar  Bakshi’s  (3)  case.  In Hadibandhu’s case  (supra) this Court specifically held that mere oral  explanation of the detention order which ran into 14 typed  pages, without  supplying the detenu a translation in a  script or  language which  he understood,  amounted to denial of the right of being communicated the grounds and of being afforded  the opportunity  of making  a representation against the  order. It would thus follow that if the grounds together with  copies of all documents, statements and other materials incorporated  in the grounds by reference on which the detaining  authority  has  relied  are  required  to  be communicated to  the detenu  under Art.  22(5) read  with s. 3(3) of  COFEPOSA within the prescribed time then not merely the  grounds  of  detention  but  also  the  copies  of  all incorporated documents,  statements and other materials must be supplied  to the  detenu in a script or language which he understands and failure to do so would amount to a breach of the mandate contained in Art. 22(5) read with s. 3(3) of the COFEPOSA.      Two more  decisions of this Court in the context of the obligation  to   supply  documents,   statements  and  other materials referred  to in  the grounds  of detention  may be noted. In  Kamla Kanyalal  Khushalani’s  (4)case  and  Sunil Dutt’s(5) case  this Court  has taken  the view that all the documents, statements  and other  materials referred  to  or relied upon  either in  the order  of detention  or  in  the grounds  of   detention  must  be  served  upon  the  detenu alongwith the  grounds. The  Court has  held that  where the documents and  materials in  support of  the grounds  on the basis of  which the  detention order has been made, the same being ex-hypothesi  in existence at the time of the issuance of the  detention order and framing of the grounds, were not supplied  to   the  detenu   alongwith   the   grounds   and consequently the  detenu was prevented from making effective representation  against   his   detention,   the   continued detention of the detenu would 554 be  illegal   inasmuch  as  such  non-supply  of  documents, statements and  materials alongwith the grounds of detention amounted to  a violation  of the  safeguard available to the detenu under Art. 22(5).      Two propositions  having a  bearing on  the  points  at issue  in  the  case  before  us,  clearly  merge  from  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16  

aforesaid resume  of decided  cases  :  (a)  all  documents, statements and  other materials  incorporated in the grounds by reference  and which  have influenced  the  mind  of  the detaining authority  in arriving at the requisite subjective satisfaction must  be furnished to the detenu along with the grounds or  in any event not later than five days ordinarily and in  the exceptional  circumstances and for reasons to be recorded in  writing not later than 15 days from the date of his detention and (b) all such material must be furnished to him in a script or language which he understands and failure to do  either of  the two things would amount to a breach of the two duties cast on the detaining authority under Art. 22 (5) of  the Constitution.  Relying upon  this legal position counsel for  the petitioner  urged before  us  that  in  the instant case  a breach  of the  mandate contained in Art. 22 (5) read  with s.  3 (3) of the COFEPOSA is clearly involved because of  three things  that have  happened,  namely,  (i) supply of  Urdu translations  of the  bulk of  documents and statements incorporated  in the  grounds and  relied upon by the detaining authority was delayed beyond the normal period of 5 days without any exceptional circumstances obtaining in the  matter,  (ii)  the  alleged  exceptional  circumstances purporting to  justify the  delay  and  the  fact  that  the reasons had  been recorded  in writing were not communicated to the  detenu which has prevented him from making effective representation against  his continued  detention  and  (iii) Urdu translations  of quite  a few  documents and statements incorporated in the grounds and relied upon by the detaining authority have  not been  supplied to him at all. As regards the first  two aspects  counsel relied upon two decisions of the Patna  High Court,  namely, Bishwa  Mohan Kumar Sinha v. State of  Bihar and Ors.(1) and Bishwanath Prasad Keshari v. State of  Bihar &  Ors.(2) where  the Patna  High Court  has taken the  view  that  not  merely  should  the  exceptional circumstances exist  justifying the  delayed supply  of  the grounds of detention but these should be communicated to the detenu to  enable him  to make  an effective representation. Counsel urged  that because  of the  aforesaid  failure  the continued 555 detention of  the petitioner  must be held to be illegal. We find considerable  force in  these submissions  made by  the counsel for the petitioner.      As regards  the first  aspect pressed  into service  by counsel for the petitioner the undisputed facts are that the impugned order of detention was issued on 1st of July, 1982, that the  same was  served on  the detenu on 2nd July, 1982; and immediately  thereafter he  was put  under detention  in Ahmedabad Central  Prison; the grounds of detention drawn up in English  and translated  in Urdu  together with copies of all documents  and statements incorporated in the grounds in original language  (English and  Hindi) were served upon the detenu on  7th July,  1982  i.  e.  within  5  days  of  his detention. Obviously,  serving copies  of all  the documents and statements in English and Hindi on him on 7th July, 1982 was of  no use  and it  was only  on 15th of July, 1982 that Urdu  translations   of  the  bulk  of  such  documents  and statements were  supplied to him. In other words effectively the grounds of detention together with bulk of documents and statements incorporated  in the  grounds in  the  script  or language understood  by him  were served or supplied on 15th July, 1982  which was beyond the normal period of five days. In any  event supply  of bulk  of documents  and  statements incorporated in  the  grounds  in  the  script  or  language understood by  the detenu  was  delayed  beyond  the  normal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16  

period of  5 days.  The question  is whether  such delay was justified by  existence of  any exceptional circumstances as required by  s. 3  (3) of the COFEPOSA for in the absence of exceptional circumstances delay beyond normal period of five days would  be a breach of the constitutional as well as the legislative mandate. Counsel for the respondents invited our attention to  the  affidavit  of  Shri  P.  M.  Shah  Deputy Secretary (Home  Department), Government of Gujarat filed on 10th September,  1982 and  an  office  noting  approved  and signed  by   the  Home  Minister  which  have  set  out  the circumstances occasioning  the delay.  In his  affidavit all that Shri  Shah has  stated is  "time was  taken as  a large number of  documents were  to be  translated" while  in  the office noting dated 2-7-82 it has been stated:           "It may be mentioned here on account of Holy month      of Ramzan,  Urdu translators are not available. Handful      translators who  are available have expressed that they      would work  from 12  noon to  4 p. m. because of Ramzan      fasts 556      they observe. Under the circumstances it is proposed as      under:           (1) ... ... ... ... ... ...           (2) ... ... ... ... ... ...           (3)  The Urdu  translations of documents and other                materials referred  to at  (2) above  may  be                furnished to  the detenu  as soon as they are                prepared  by  a  batch  of  Urdu  translators                engaged for the purpose but not later than 15                days as  prescribed in  the Act, as a special                case on  account of  the utmost  difficulties                pointed out above " Below this noting the Home Minister has made his endorsement approving the  proposal under  the date  2-7-1982. In  other words, according  to the  respondents  there  were  a  large number of  documents requiring translation and on account of the Holy month of Ramzan Urdu translators were not available and those  handful translators  who were  available and were put on  the job were prepared to work only from 12 noon to 4 p. m.  because of  Ramzan fasts  they  observed.  Preventive detention is  a serious invasion of personal liberty and the normal methods  open to  a person charged with commission of any offence to disprove the charge or to prove his innocence at the  trial are  not available  to the person preventively detained and therefore in preventive detention jurisprudence whatever  little   safeguards  the   constitution  and   the enactment authorising  such detention  provide assume utmost importance and  must be  strictly adhered to and one of such safeguards is  that unless  exceptional circumstances really obtain the  delay in  supply of grounds of detention as also the  documents   and  statements   incorporated  therein  by reference beyond  the normal  period of  five days  would be fatal. Looked  at from  this angle the aforesaid explanation given by  the detaining  authority cannot,  in our  view, be regarded   as    constituting   exceptional    circumstances justifying the  delay in the supply of bulk of documents and statements to  the detenu  in  the  script  or  language  he understood. In  the first  piece, on  admitted facts  in the case upon  revocation of  the earlier detention order on 1st July, 1982  there was no urgency to issue the impugned order of detention  on the  same day  or serve it on the detenu on the following  day, the  detenu was in judicial custody then in other  two cases,  one under  the Arms  Act and the other under the Foreigners Act and no bail having been granted 557

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16  

to him  there was  no fear of his absconding from Ahmedabad, there being  no urgency  the detaining  authority could have kept all the material ready in Urdu and supplied the same to him immediately  after detaining  him second time. Secondly, the office noting does not give particulars of how many Urdu translators were  put on  the  job  except  vaguely  stating ’handful translators’  were available.  Thirdly  the  office noting  clearly   suggests  that  the  translation  job  was entrusted to  Urdu translators  belonging  to  a  particular community who  observed Ramzan  fast, instead of restricting the choice  in this  manner additional  Urdu translators who had nothing  to do with the observance of Ramzan fasts could have been  but on  the job, but nothing is indicated whether and if  so what  efforts were  made in  that behalf.  It  is difficult  to   swallow  the   proposition  that  the  State Government (which  is detaining authority here) with all its power and  resources could  not  find  requisite  number  of qualified persons  to  do  that  job  so  as  to  make  Urdu translations  of  the  concerned  documents  and  statements available to  the detenu  within the  normal period  of five days. With the previous detention order having been vitiated on the  very ground,  greater vigilance  and expedition  was expected from  the detaining authority. In all the facts and circumstances it  is impossible  to  hold  that  exceptional circumstances obtained  in the case justifying the delay and as such  the same constitutes a breach of the constitutional as well as the legislative mandate.      On the  second aspect the contention of counsel for the petitioner has  been  that  the  detaining  authority  while supplying the  Urdu translations  of the  bulk documents and statements beyond  the normal period of 5 days ought to have given indication to the detenu that the delay was caused due to  exceptional   circumstances  and  what  the  exceptional circumstances were, as also of the fact that reasons for the delay had been recorded in writing but this was not done and this failure  prevented the  detenu  from  making  effective representation  against   his  detention.  Counsel  for  the respondents, however,  contended that neither Art. 22(5) nor s. 3(3)  of the COFEPOSA casts any obligation or duty on the detaining authority  to inform the detenu anything about the exceptional circumstances due to which delay might occur nor about the fact whether reasons have been recorded in writing or not  and, according to counsel, these are matters for the Court’s satisfaction when any issue in that behalf is raised before it.  It is  true that neither Art. 22(5) nor does the COFEPOSA contain any provision which casts such a duty upon 558 the detaining  authority in  express terms;  it is also true that the  Court will  of course  go into  and satisfy itself about these  matters when any issue in that behalf is raised before it.  But the  question is whether such a duty is cast on the  detaining authority  by necessary implication ? Does it or  does it  not flow  from the  right conferred upon the detenu to  make representation  against his  detention ?  In this behalf  it cannot  be disputed that under the scheme of the COFEPOSA against his detention the detenu has a right to make a  representation to  an authority which is superior to the detaining  authority (e.g.  to the State Government when the detaining  authority happens  to be  an officer  of that Government or  to the Central Government where the detaining authority happens  to be the State Government) as well as to the Advisory  Board  and  such  representation  against  his detention can  be on  merits of  the grounds of detention as also for  failure on  the part of the detaining authority to observe strictly  the requisite safeguards and on satisfying

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16  

the superior authority or the Advisory Board on either count he is  entitled to have his detention revoked or quashed. We have already  indicated above that one of such safeguards is that unless  exceptional circumstances  really obtain  in  a case the  delay in supply of grounds of detention and/or the documents and  statements incorporated  therein by reference beyond the  normal period of five days would be fatal to the continued detention  of the  detenu.  In  other  words,  the detenu is  entitled to satisfy either the superior authority or the  Advisory Board  that the  delay that has occurred in the supply  of requisite  material to  him was not justified because exceptional circumstances did not exist or those put forward were  unreal or  invalid. Obviously, the detenu will not be  in a  position to  do so  if the alleged exceptional circumstances are  not communicated  to him.  In  our  view, therefore, a  duty to  inform the detenu about the existence of exceptional circumstances and what they were for delay in supplying  grounds   of  detention   and/or  documents   and statements  incorporated   therein   arises   by   necessary implication and  flow from the right which is conferred upon the detenu  to make representation against his detention. In the instant  case, for  instance, if the alleged exceptional circumstances were communicated to the detenu at the time of the delayed supply of the concerned documents and statements in Urdu  language  he  could  have  satisfied  the  superior authority  or   the  Advisory  Board  that  the  exceptional circumstances did  not really  obtain in  the case  and  the delay had  vitiated his  detention. In  other words, what he has done before the Court now, he could have done before the superior authorities or the Advisory 559 Board. For  these reasons  we approve of the view ultimately taken by  the Patna  High Court  in the  two decisions cited above, particularly  the  decision  in  Bishwa  Mohan  Kumar Sinha’s case  (supra) where both the aspects have been dealt with. In  our view,  therefore, the impugned failure in this case constitutes  another breach  of the safeguard contained in Art. 22(5) read with s. 3(3) of the COFEPOSA and vitiates the continued detention of the petitioner.      Lastly, Urdu  translations of quite a few documents and statements referred  to in  the  grounds  of  detention  and relied upon  by the  detaining authority were admittedly not supplied to the detenu at all and the only explanation given by the  counsel for  the respondents at the hearing has been that most of these documents (Urdu translations whereof were not supplied)  comprised statements  of accounts  which  had figures in  English  with  some  English  words  written  in capital  letters  and  some  documents  were  in  Hindi  and Gujarati and  the record  (statements of  Rekha, her  sister Indi and  one Jayantilal  Soni, all  co-conspirators of  the detenu, recorded  during the  investigation)  clearly  shows that  the  petitioner  knows  English  figures,  understands English words  written  in  capital  letters  and  can  also converse or  talk in Hindi and Gujarati and as such the non- supply of  Urdu translations  of these  documents cannot  be said to  have caused  any prejudice to the petitioner in the matter of  making a representation against his detention. In our view,  the explanation is hardly satisfactory and cannot condone  the   non-supply  of  Urdu  translations  of  these documents.  Admittedly,   the  petitioner   is  a  Pakistani national and Urdu seems to be his mother tongue and a little knowledge of  English figures, ability to read English words written in  capital letters  and a  smattering knowledge  of Hindi or  Gujarati would  not justify  the  denial  of  Urdu translations to him of the material documents and statements

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16  

referred to  as incriminating  documents in  the grounds and relied upon  by the  detaining authority  in arriving at its subjective satisfaction.  In fact,  the claim made before us on behalf  of the  detenu that  he only knows Urdu cannot be brushed aside  as false  especially in view of the fact that the same  was  accepted  on  the  earlier  occasion  by  the Advisory Board  who had  actually  opined  that  failure  to supply  Urdu   translations  of  grounds  of  detention  and documents had  vitiated the  earlier order  of detention and following this opinion respondent No. 1 had revoked the said order. Moreover,  with the  assistance of  counsel on either side we  have ourselves gone through many of these documents and statements  and it  is not  possible to say that most of them 560 are merely  statements  of  account  containing  figures  in English with English words written in capital letters. These documents recovered  from three  flats  in  three  different societies, include,  for instance,  documents like bills and vouchers showing  purchases made  from some  shops, while  a large number  of documents  are in  Hindi and  Gujarati  and relate to  transactions in  contraband articles  like  gold, silver,  watches,   etc.,  and  comprise  accounts  of  such transactions, the  figures as well as recitals pertaining to which are  entirely in Gujarati. All these, in our view, are material documents  which have obviously influenced the mind of the  detaining authority  in arriving  at its  subjective satisfaction and  these are  all in a script or language not understood by detenu, and, therefore, the non-supply of Urdu translations of  these documents  has clearly prejudiced the petitioner in the exercise of his right to make an effective representation against his detention and hence the safeguard contained in Art. 22(5) is clearly violated.      Having regard to the above discussion it is clear to us that the  continued detention  of the  petitioner  would  be illegal and  we accordingly quash the same and direct him to be released forthwith. S.R.                                       Petition allowed. 561